Nichols v. United States ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NICHOLS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 15–5238. Argued March 1, 2016—Decided April 4, 2016
The Sex Offender Registration and Notification Act (SORNA) makes it
a federal crime for certain sex offenders to “knowingly fai[l] to regis-
ter or update a registration,” 18 U.S. C. §2250(a)(3), and requires
that offenders who move to a different State “shall, not later than 3
business days after each change of name, residence, employment, or
student status,” inform in person “at least 1 jurisdiction involved
pursuant to [42 U.S. C. §16913(a)] . . . of all changes” to required in-
formation, §16913(c). A §16913(a) jurisdiction is “each jurisdiction
where the offender resides, . . . is an employee, and . . . is a student.”
Petitioner Nichols, a registered sex offender who moved from Kan-
sas to the Philippines without updating his registration, was arrest-
ed, escorted to the United States, and charged with violating SORNA.
After conditionally pleading guilty, Nichols argued on appeal that
SORNA did not require him to update his registration in Kansas.
The Tenth Circuit affirmed his conviction, holding that though Nich-
ols left Kansas, the State remained a “jurisdiction involved” for
SORNA purposes.
Held: SORNA did not require Nichols to update his registration in
Kansas once he departed the State. Pp. 4–8.
(a) SORNA’s plain text dictates this holding. Critical here is
§16913(a)’s use of the present tense. Nichols once resided in Kansas,
but after moving, he “resides” in the Philippines. It follows that once
Nichols moved, he was no longer required to appear in Kansas be-
cause it was no longer a “jurisdiction involved.” Nor was he required
to appear in the Philippines, which is not a SORNA “jurisdiction.”
§16911(10). Section 16913(c)’s requirements point to the same con-
clusion: Nichols could not have appeared in person in Kansas “after”
leaving the State. SORNA’s drafters could have required sex offend-
2 NICHOLS v. UNITED STATES
Syllabus
ers to deregister in their departure jurisdiction before leaving the
country had that been their intent. Pp. 4–6.
(b) The Government resists this straightforward reading. It argues
that a jurisdiction where an offender registers remains “involved”
even after the offender leaves, but that would require adding the ex-
tra clause “where the offender appears on a registry” to §16913(a).
Also unconvincing is the claim that §16914(a)(3)’s requiring the of-
fender to provide each address where he “will reside” shows that
SORNA contemplates the possibility of an offender’s updating his
registration before he actually moves. That provision merely lists the
pieces of information to be updated; it says nothing about an obliga-
tion to update in the first place. Finally, the Government’s argument
that Nichols actually experienced two “changes” of residence—first,
when he turned in his apartment keys in Kansas, and second, when
he checked into his Manila hotel—is inconsistent with ordinary Eng-
lish usage. Pp. 6–7.
(c) Although “the most formidable argument concerning the stat-
ute’s purposes [cannot] overcome the clarity [found] in the statute’s
text,” Kloeckner v. Solis, 568 U. S. ___, ___, n. 4, the Court is mindful
of those purposes and notes that its interpretation is not likely to
create deficiencies in SORNA’s scheme. Recent legislation by Con-
gress, as well as existing state-law registration requirements, offers
reassurance that sex offenders will not be able to escape punishment
for leaving the United States without notifying their departure juris-
dictions. Pp. 7–8.
775 F.3d 1225, reversed.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–5238
_________________
LESTER RAY NICHOLS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[April 4, 2016]
JUSTICE ALITO delivered the opinion of the Court.
Lester Ray Nichols, a registered sex offender living in
the Kansas City area, moved to the Philippines without
notifying Kansas authorities of his change in residence.
For that omission Nichols was convicted of failing to up-
date his sex-offender registration, in violation of 18
U.S. C. §2250(a). We must decide whether federal law
required Nichols to update his registration in Kansas to
reflect his departure from the State.
I
A
Following the high-profile and horrific rape and murder
of 7-year-old Megan Kanka by her neighbor, States in the
early 1990’s began enacting registry and community-
notification laws to monitor the whereabouts of individu-
als previously convicted of sex crimes. See Smith v. Doe,
538 U.S. 84, 89 (2003); Filler, Making the Case for Me-
gan’s Law, 76 Ind. L. J. 315, 315–317 (2001). Congress
followed suit in 1994 with the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registra-
tion Act, 108 Stat. 2038, 42 U.S. C. §14071 et seq. (1994
2 NICHOLS v. UNITED STATES
Opinion of the Court
ed.). Named after an 11-year-old who was kidnapped at
gunpoint in 1989 (and who remains missing today), the
Wetterling Act conditioned federal funds on States’ enact-
ing sex-offender registry laws meeting certain minimum
standards. Smith, 538 U.S., at 89–90. “By 1996, every
State, the District of Columbia, and the Federal Govern-
ment had enacted some variation of ” a sex-offender regis-
try. Id., at 90.
In 2006, Congress replaced the Wetterling Act with the
Sex Offender Registration and Notification Act (SORNA),
120 Stat. 590, 42 U.S. C. §16901 et seq. Two changes are
pertinent here. First, Congress made it a federal crime for
a sex offender who meets certain requirements to “know-
ingly fai[l] to register or update a registration as required
by [SORNA].” 18 U.S. C. §2250(a)(3); see Carr v. United
States, 560 U.S. 438, 441–442 (2010). Second, Congress
amended the provisions governing the registration re-
quirements when an offender moves to a different State.
The original Wetterling Act had directed States to require
a sex offender to “register the new address with a desig-
nated law enforcement agency in another State to which
the person moves not later than 10 days after such person
establishes residence in the new State, if the new State
has a registration requirement.” 42 U.S. C. §14071(b)(5)
(1994 ed.) (emphasis added). Congress later amended this
provision to direct States to require a sex offender to
“report the change of address to the responsible agency in
the State the person is leaving, and [to] comply with any
registration requirement in the new State of residence.”
42 U.S. C. §14071(b)(5) (2000 ed.) (emphasis added).
SORNA repealed this provision of the Wetterling Act.
120 Stat. 600. In its place, federal law now provides:
“A sex offender shall, not later than 3 business days
after each change of name, residence, employment, or
student status, appear in person in at least 1 jurisdic-
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
tion involved pursuant to subsection (a) and inform
that jurisdiction of all changes in the information re-
quired for that offender in the sex offender registry.”
42 U.S. C. §16913(c) (emphasis added).
Subsection (a), in turn, provides: “A sex offender shall
register, and keep the registration current, in each juris-
diction where the offender resides, where the offender is
an employee, and where the offender is a student.”
§16913(a). A sex offender is required to notify only one
“jurisdiction involved”; that jurisdiction must then notify a
list of interested parties, including the other jurisdictions.
§§16921(b)(1)–(7). The question presented in this case is
whether the State a sex offender leaves—that is, the State
where he formerly resided—qualifies as an “involved”
jurisdiction under §16913.
B
In 2003, Nichols was convicted of traveling with intent
to engage in illicit sexual conduct with a minor, in viola-
tion of 18 U.S. C. §2423(b). Although his offense predated
SORNA’s enactment, Nichols was nevertheless required
upon his eventual release in December 2011 to register as
a sex offender in Kansas, where he chose to settle. 28 CFR
72.3 (2015). Nichols complied with SORNA’s registration
requirements—until November 9, 2012, when he abruptly
disconnected all of his telephone lines, deposited his
apartment keys in his landlord’s drop-box, and boarded a
flight to Manila. When Nichols was a no-show at manda-
tory sex-offender treatment, a warrant was issued revok-
ing his supervised release. With the assistance of Ameri-
can security forces, local police in Manila arrested Nichols
in December 2012, and federal marshals then escorted
him back to the United States, where he was charged with
one count of “knowingly fail[ing] to register or update a
registration as required by [SORNA],” 18 U.S. C.
§2250(a)(3). After unsuccessfully moving to dismiss the
4 NICHOLS v. UNITED STATES
Opinion of the Court
indictment on the ground that SORNA did not require him
to update his registration in Kansas, Nichols conditionally
pleaded guilty, reserving his right to appeal the denial of
his motion.
The Tenth Circuit affirmed. 775 F.3d 1225 (2014).
Following its own precedent in United States v. Murphy,
664 F.3d 798 (2011), the panel held that when a sex of-
fender “ ‘leaves a residence in a state, and then leaves the
state entirely, that state remains a jurisdiction involved’ ”
under §16913. 775 F.3d, at 1229. Over four dissenting
votes, the court denied Nichols’s petition for rehearing en
banc. 784 F.3d 666 (2015). In adhering to Murphy, the
Tenth Circuit reentrenched a split created by the Eighth
Circuit’s decision in United States v. Lunsford, 725 F.3d
859 (2013). Remarkably, Lunsford also involved a sex
offender who moved from the Kansas City area—on the
Missouri side—to the Philippines. Contra the Tenth
Circuit’s decision below, Lunsford held that that defend-
ant had no obligation to update his registration in Mis-
souri because a sex offender is required “to ‘keep the regis-
tration current’ in the jurisdiction where he ‘resides,’ not a
jurisdiction where he ‘resided.’ ” Id., at 861 (citation omit-
ted). We granted certiorari to resolve the split. 577 U. S.
___ (2015).
II
As noted, Nichols was required to “appear in person in
at least 1 jurisdiction involved pursuant to subsection (a)
and inform that jurisdiction of ” his change of residence.
42 U.S. C. §16913(c). Subsection (a) mentions three
possible jurisdictions: “where the offender resides, where
the offender is an employee, and where the offender is a
student.” §16913(a). The Philippines is not a “jurisdic-
tion” under SORNA; no foreign country is. See
§16911(10). Putting these provisions together, SORNA
therefore requires a sex offender who changes his resi-
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
dence to appear, within three business days of the change,
in person in at least one jurisdiction (but not a foreign
country) where he resides, works, or studies, and to inform
that jurisdiction of the address change. Critically,
§16913(a) uses only the present tense: “resides,” “is an
employee,” “is a student.” A person who moves from Leav-
enworth to Manila no longer “resides” (present tense) in
Kansas; although he once resided in Kansas, after his
move he “resides” in the Philippines. It follows that once
Nichols moved to Manila, he was no longer required to
appear in person in Kansas to update his registration, for
Kansas was no longer a “jurisdiction involved pursuant to
subsection (a)” of §16913.
The requirement in §16913(c) to appear in person and
register “not later than 3 business days after each change
of . . . residence” points to the same conclusion. Nichols
could not have appeared in person in Kansas “after” leav-
ing the State. To be sure, one may argue that the day
before his departure was “not later than 3 business days
after” his departure, but no one in ordinary speech uses
language in such a strained and hypertechnical way.
If the drafters of SORNA had thought about the problem
of sex offenders who leave the country and had sought to
require them to (de)register in the departure jurisdiction,
they could easily have said so; indeed, that is exactly what
the amended Wetterling Act had required. 42 U.S. C.
§14071(b)(5) (2000 ed.) (“report the change of address to
the responsible agency in the State the person is leaving”).
It is also what Kansas state law requires: Nichols had a
duty to notify, among other entities, “the registering law
enforcement agency or agencies where last registered.”
Kan. Stat. Ann. §22–4905(g) (2014 Cum. Supp.) (emphasis
added). Congress could have chosen to retain the lan-
guage in the amended Wetterling Act, or to adopt locution
similar to that of the Kansas statute (and echoed in the
statutes of many other States, cf. Brief for Petitioner 6,
6 NICHOLS v. UNITED STATES
Opinion of the Court
n. 1). It did neither. SORNA’s plain text—in particular,
§16913(a)’s consistent use of the present tense—therefore
did not require Nichols to update his registration in Kan-
sas once he no longer resided there.
III
The Government resists this straightforward reading of
the statutory text, arguing instead that once an offender
registers in a jurisdiction, “that jurisdiction necessarily
remains ‘involved pursuant to subsection (a),’ because the
offender continues to appear on its registry as a current
resident.” Brief for United States 24. But §16913(a) lists
only three possibilities for an “involved” jurisdiction:
“where the offender resides, where the offender is an
employee, and where the offender is a student.” Notably
absent is “where the offender appears on a registry.” We
decline the Government’s invitation to add an extra clause
to the text of §16913(a). As we long ago remarked in
another context, “[w]hat the government asks is not a
construction of a statute, but, in effect, an enlargement of
it by the court, so that what was omitted, presumably by
inadvertence, may be included within its scope. To supply
omissions transcends the judicial function.” Iselin v.
United States, 270 U.S. 245, 251 (1926). Just so here.
Relatedly, the Government points out that among the
pieces of information a sex offender must provide as part
of his registration is “[t]he address of each residence at
which the sex offender resides or will reside.” §16914(a)(3)
(emphasis added). The use of the future tense, says the
Government, shows that SORNA contemplates the possi-
bility of an offender’s updating his registration before
actually moving. But §16914(a) merely lists the pieces of
information that a sex offender must provide if and when
he updates his registration; it says nothing about whether
the offender has an obligation to update his registration in
the first place.
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
Finally, the Government argues that Nichols actually
experienced not one but two “changes” of residence—the
first when he “abandoned” his apartment in Leavenworth
by turning in his keys, and the second when he checked
into his hotel in Manila. On the Government’s view, a sex
offender’s “residence information will change when he
leaves the place where he has been residing, and it will
change again when he arrives at his new residence. He
must report both of those changes in a timely fashion.”
Brief for United States 21. We think this argument too
clever by half; when someone moves from, say, Kansas
City, Kansas, to Kansas City, Missouri, we ordinarily
would not say he moved twice: once from Kansas City,
Kansas, to a state of homelessness, and then again from
homelessness to Kansas City, Missouri. Nor, were he to
drive an RV between the cities, would we say that he
changed his residence four times (from the house on the
Kansas side of the Missouri River to a state of homeless-
ness when he locks the door behind him; then to the RV
when he climbs into the vehicle; then back to homeless-
ness when he alights in the new house’s driveway; and
then, finally, to the new house in Missouri). And what if
he were to move from Kansas to California and spend
several nights in hotels along the way? Such ponderings
cannot be the basis for imposing criminal punishment.
“We interpret criminal statutes, like other statutes, in a
manner consistent with ordinary English usage.”
Abramski v. United States, 573 U. S. ___, ___ (2014) (Scalia,
J., dissenting) (slip op., at 4); Flores-Figueroa v. United
States, 556 U.S. 646, 652 (2009). In ordinary English,
Nichols changed his residence just once: from Kansas to
the Philippines.
We are mindful that SORNA’s purpose was to “make
more uniform what had remained ‘a patchwork of federal
and 50 individual state registration systems,’ with ‘loop-
holes and deficiencies’ that had resulted in an estimated
8 NICHOLS v. UNITED STATES
Opinion of the Court
100,000 sex offenders becoming ‘missing’ or ‘lost.’ ” United
States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op.,
at 11–12) (citation omitted). Yet “even the most formida-
ble argument concerning the statute’s purposes could
not overcome the clarity we find in the statute’s text.”
Kloeckner v. Solis, 568 U. S. ___, ___, n. 4 (2012) (slip op.,
at 14, n. 4).
Our interpretation of the SORNA provisions at issue in
this case in no way means that sex offenders will be able
to escape punishment for leaving the United States with-
out notifying the jurisdictions in which they lived while in
this country. Congress has recently criminalized the
“knowin[g] fail[ure] to provide information required by
[SORNA] relating to intended travel in foreign commerce.”
International Megan’s Law to Prevent Child Exploitation
and Other Sexual Crimes Through Advanced Notification
of Traveling Sex Offenders, Pub. L. 114–119, §6(b)(2), 130
Stat. 23, to be codified at 18 U.S. C. §2250(b). Such in-
formation includes “anticipated dates and places of depar-
ture, arrival, or return[;] carrier and flight numbers for air
travel[;] destination country and address or other contact
information therein,” et cetera. §6(a)(1)(B), 130 Stat. 22,
to be codified at 42 U.S. C. §16914(a)(7). Both parties
agree that the new law captures Nichols’s conduct. Supp.
Brief for United States 3; Reply Brief 10; Tr. of Oral Arg.
18, 35. And, of course, Nichols’s failure to update his
registration in Kansas violated state law. Kan. Stat. Ann.
§22–4905(g). We are thus reassured that our holding
today is not likely to create “loopholes and deficiencies” in
SORNA’s nationwide sex-offender registration scheme.
* * *
The judgment of the Court of Appeals for the Tenth
Circuit is reversed.
It is so ordered.